Himachal Pradesh High Court
Ajay Kumar Sharma & Anr vs State Of H.P. & Anr on 31 August, 2017
Bench: Tarlok Singh Chauhan, Chander Bhusan Barowalia
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No. 1228 of 2014 Reserved on: 7.7.2017 Date of decision: 31.08.2017.
.
Ajay Kumar Sharma & Anr. ...... Petitioners.
Vs.
State of H.P. & Anr . ..... Respondents
Coram:
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. The Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge.
Whether approved for reporting?1 Yes.
For the petitioners : Mr. Sanjeev Kuthiala, Advocate.
For the respondents : Mr. Shrawan Dogra, Advocate r General with Mr. V. S. Chauhan and Mr. Anup Rattan, Addl. Advocate Generals, for respondents No. 1 and 2. Mr. K.D. Sood, Sr. Advocate, with Mr. Sanjeev Sood, Advocate, for the applicants in CMP No. 8793 of 2014.
Tarlok Singh Chauhan, Judge By medium of this petition, the petitioners have questioned the Notification dated 26th February, 2014 (Annexure P-16) (hereinafter referred to as the 'impugned notification') issued by the Principal Secretary (LAC) to the Government of Himachal Pradesh under Sub-Section (1) of Section 29 of the Himachal Pradesh Hindu Public Religious Institutions and Whether the reporters of the local papers may be allowed to see the Judgment?
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Charitable Endowments Act, 1984 (Act No. 18 of 1984) (for short the 'Act') whereby "Shri Maha Shiv Mandir Shivbadi (Ambota), Distt. Una" has been included in Schedule-I of the Act.
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2. It is averred that the predecessor-in-interest of the petitioners Nanku was granted a deed of Jagir by British Government through the Secretary of State in Council with respect to the land and property comprised in Khasra Nos. 3504, 3507 and 3511, measuring 0.06.06 hectares situated at village Ambota, earlier known as "Thakurdwara" and is presently known as "Shri Maha Shiv Mandir Shivbadi, Ambota, District Una, H.P."
3. It is claimed that the grant of the temple was individually given to Nanku and his family members from generation to generation and the family was treating it as family property and therefore the respondents vide impugned notification could not have been included the same in Schedule-I of the Act. It is further averred that even at an earlier occasion the temple was sought to be included in Schedule-I of the Act but was de-notified.
4. The respondents have filed their reply wherein it is averred that as per the deed as annexed with the petition as Annexure P-1, the predecessor-in-interest of the petitioners was appointed as trustee at "Thakurdwara" by the then British ::: Downloaded on - 01/09/2017 23:26:27 :::HCHP ...3...
Government and the status of the petitioners would remain as such till the government would have resumed the same at its pleasure. Now, the State Government has taken a conscious .
decision to include the temple in Schedule-I of the Act strictly in accordance with law and in larger public interest, therefore, the petition should be dismissed.
5. In rejoinder filed to the reply, it has been claimed that the grant in their favour was irrevocable from generation to generation and is governed by the provisions of the Government Grantees Act and therefore with the passage of time their rights have ripened into complete ownership.
We have heard learned counsel for the parties and have gone through the materials placed on record.
6. As regards the plea of the petitioners that the grant in their favour is irrevocable or the same is governed under the Government Grantees Act and with the passage of time resulted in complete ownership of the property as envisaged under the grant, suffice it to say that this plea is not available to them for the reason that in the earlier suit filed by them which is pending adjudication, no such plea was raised, therefore, the same is clearly barred by the principles as contemplated under Order 2 Rule 2 of the Code of Civil Procedure (CPC).
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7. Even though the petitioners would vehemently argue that the bar of Order 2 Rule 2 of the CPC does not apply to the petition filed under Article 226 of the Constitution and would rely .
upon the Constitutional Bench decision of the Hon'ble Supreme Court in Devender Pratap Narain Rai Sharma, v. State of Uttar Pradesh and others, AIR 1962 1334 and Gulabchand Chhotalal Parikh v. State of Gujarat, AIR 1965 1153. However, we find no merit in the said contention as this legal proposition has already been considered by us in detail in Review Petition No. 108 of 2016, in case titled as Ex-Petty Officers No.114294-K Hari Pal Singh vs. State of H.P., wherein it was held as under:-
"2. The review is primarily sought on the ground that this Court while denying relief to the appellant had wrongly invoked the principles contained in order 2 rule 2 of the Code of Civil Procedure (CPC) as the same were not applicable to the proceedings under Article 226 of the Constitution of India.
3. In support of his submission, strong reliance was placed by the petitioner on the judgment of the Hon'ble Constitution Bench of the Supreme Court in Devendra Pratap Narain Rai Sharma vs. State of Uttar Pradesh and others, AIR 1962 SC 1334, particularly observations contained in para 12, which read thus:
"[12] The High Court has disallowed to the appellant his salary prior to the date of the suit. The bar of O. 2 R. 2 of the Civil Procedure Code on which the, High Court apparently relied may not apply to a petition for a high prerogative writ under Art. 226 of the Constitution, but the High Court having disallowed the claim of the appellant for salary prior to the date of the suit, we do not think that we would be justified in ::: Downloaded on - 01/09/2017 23:26:27 :::HCHP ...5...
interfering with the exercise of its discretion by the High Court."
4. Undoubtedly, the aforesaid observations support the contention of the petitioner, but this Court has nowhere in the .
judgment under review held the provisions of order 2 rule 2 CPC to be applicable but has only made the principles contained therein applicable to the facts of the case.
5. It is more than settled that avoiding the multiplicity of legal proceedings should be the aim of all courts and, therefore, a litigant cannot be allowed to split up his claim and file writ petition in piecemeal fashion. If the litigant could have, but did not without any legal justification claim a relief which was available to him at the time of filing earlier writ petition, the same claim cannot be allowed to be subsequently agitated by filing another writ petition.
6. In this context, it shall be apt to refer to the judgment of the Hon'ble Supreme Court in M/s. D. Cawasji and Co., etc vs. State of Mysore and another, AIR 1975 SC 813 wherein it was held as under:
"[18] But, that however, is not the end of the matter. In the earlier writ petitions which culminated in the decision in (1968) 2 Mys LJ 78 = (AIR 1969 Mys 23) the appellants did pray for refund of the amounts paid by them under the Act and the High Court considered the prayer for refund in each of the writ petitions and allowed the prayer in some petitions and rejected it in the others on the ground of delay. The Court observed that those writ petitioners whose prayers had been rejected would be at liberty to institute suits or other proceedings. We are not sure that, in the context, the High Court, meant by 'other proceedings', applications in the nature of proceedings under Article 226, when it is seen that the Court refused to entertain the relief for refund on the ground of delay in the proceedings ::: Downloaded on - 01/09/2017 23:26:27 :::HCHP ...6...
under Article 226 and that in some cases the Court directed the parties to file representations before Government. Be that as it may, in the earlier writ petitions, the appellants did not pray for refund of the .
amounts paid by way of cess for the years 1951-52 to 1965-66 and they gave no reasons before the High Court in these writ petitions why they did not make the prayer for refund of the amounts paid during the years in question. Avoiding multiplicity of unnecessary legal proceedings should be an aim of all courts. Therefore, the appellants could not be allowed to split up their claim for refund and file writ petitions on this piecemeal fashion. If the appellants could have, but did not, without any legal justification, claim refund of the amounts paid during the years in question, in the earlier writ petitions, we see no reason why the appellants should be allowed to claim the amounts by filing writ petitions again. In the circumstances of this case, having regard to the conduct of the appellants in not claiming these amounts in the earlier writ petitions without any justification, we do not think we would be justified in interfering with the discretion exercised by the High Court in dismissing the writ petitions which were filed only for the purpose of obtaining the refund and directing them to resort to the remedy of suits."
7. In Commissioner of Income Tax, Bombay vs. T.P. Kumaran, (1996) 10 SCC 561, the Hon'ble Supreme Court observed as under:
"[4] The tribunal has committed a gross error of law in directing the payment. The claim is barred by constructive res judicata under Section 11, Explanation IV, Civil Procedure Code which envisages that any matter which might and ought to have been made ::: Downloaded on - 01/09/2017 23:26:27 :::HCHP ...7...
ground of defence or attack in a former suit, shall be deemed to have been a matter directly and substantially in issue in a subsequent suit. Hence when the claim was made on earlier occasion, he should .
have or might have sought and secured decree for interest. He did not seek so and, therefore, it operates as res judicata. Even otherwise, when he filed a suit and specifically did not claim the same, Order 2 Rule 2 Civil Procedure Code prohibits the petitioner to seek the remedy separately. In either event, the OA is not sustainable."
8. Where the principle of constructive res judicata would apply to writ petition was subject matter of consideration before the Hon'ble Supreme Court in Avinash Nagra vs. Navodaya Vidyalaya Samiti and others, (1997) 2 SCC 534 wherein it was held as under:
"[13] The High court also was right in its conclusion that the second writ petition is not maintainable as the principle of constructive res judicata would apply. He filed the writ petition in first instance but withdrew the same without permission of the court with liberty to file the second writ petition which was dismissed.
Therefore, the second writ petition is not maintainable as held by the High court in applying the correct principle of law. Thus considered we find no merit in the appeal for interference."
9. Apart from above, the provisions of Code of Civil Procedure are not applicable in writ jurisdiction by virtue of the provision of section 141 but the principles enshrined therein are applicable. (vide Gulabchand Chhotalal Parikh vs. State of Gujarat, AIR 1965 SC 1153, Babubhai Muljibhai Patel vs. Nandlal Khodidas Barot, AIR 1974 SC 2105 and Sarguja Transport Service vs. STAT, AIR 1987 SC 88).
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10. The question posed before this Court otherwise stands directly answered by this Court in Kundlu Devi and another vs. State of H.P. and others, Latest HLJ 2011 (HP) 579 wherein it was held as under:
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"4. The contention of the learned counsel for the petitioners is that though the grievance with regard to quantum was dealt with, the grievance with regard to the claim for rent and occupation charges during the period the property was in possession of the Government has not been dealt with. According to the petitioners, they are entitled to the same in view of the decision of the Apex Court in R.L. Jain Versus DDA, (2004) 4 Supreme Court Cases 79. We do not think that it will be proper for this Court at this stage in proceeding under Article 226 of the Constitution of India to go into the question as to whether the petitioners are entitled to that component of compensation. That grievance the petitioners have pursued in accordance with the procedure prescribed under the Land Acquisition Act, 1894 initially before the Collector, thereafter before the Civil Court and finally in appeal before the High Court. According to the petitioners, though this grievance was raised, the same has not been adverted to. If that be so, a civil writ petition or for that matter any other collateral proceeding is not the remedy. All contentions, which a party might and ought to have taken, should be taken in the original proceedings and not thereafter. That is the well settled principle under Order II Rule 2 CPC. Order II Rule 2 reads as follows:
"2.Suit to include the whole claim. -
(1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of ::: Downloaded on - 01/09/2017 23:26:27 :::HCHP ...9...
his claim in order to bring the suit within the jurisdiction of any Court.
(2) Relinquishment of part of claim. - Where a plaintiff omits to sue in respect of, or intentionally relinquishes, .
any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished. (3) Omission to sue for one of several reliefs. - A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted."
5. This Rule is based on the principle that the defendant shall not be vexed twice for one and the same cause. The Rule also seeks to prevent two evils, one the splitting of claims and the other splitting of remedies. If a plaintiff omits any portion of the claim or omits any of the remedies in respect of the cause, he shall not be permitted to pursue the omitted claim or the omitted remedy. The requirement of the Rule is that every suit should include the whole of the claim which the plaintiff is entitled to make in respect of a cause of action. Cause of action is a cause which gives occasion for and forms foundation of the suit. If that cause of action enables a person to ask for a larger and broader relief than to which he had limited his claim, he cannot thereafter seek the recovery of the balance of the cause of action by independent proceedings. This principle has been also settled by the Apex Court in Sidramappa versus Rajashetty, AIR 1970 SC 1059.
6. Order II Rule 2 applies also to writ proceedings. The left out portion of a cause of action cannot be pursued in a subsequent writ proceedings. All claims ::: Downloaded on - 01/09/2017 23:26:27 :::HCHP ...10...
which a petitioner might and ought to have taken, should be taken in one proceedings and only in one proceedings. {See the decision of the Supreme Court in Commissioner of Income-tax vs. T.P. Kumaran, .
1996(1) SCC 561}.
7. Equally, a person who has filed the suit seeking certain relief in respect of a cause of action is precluded from instituting another suit for seeking other reliefs in respect of the same cause of action. He shall not be entitled to invoke the writ jurisdiction of the High Court for obtaining the very same relief. In other words, if a second suit is barred, a writ petition would also be barred. What is directly prohibited cannot be indirectly permitted. That is the principle underlying under Order II Rule 2 CPC."
8. At this stage, we are required to determine as to what is the true nature of the deed annexed as Annexure P-1 under which the petitioners claim to be have an irrevocable grant in their favour and the same reads as under:-
"This deed made between the Secretary of State in Council of the one part and Nanku son of Jassu, Caste Brahmin of Mauza Ambota, Tehsil Una, District Hoshiarpur on behalf of Thakardwara.
Witnesseth that the Secretary of State in Council hereby grants to Nanku and to the future headmen for the time being of the said Thakardwara the Jaghirs detailed hereunder. Do enjoy the revenue thereof for the time being as an endowment to the said Thakardwara during the pleasure of the British Government. Provided always that the said Nanku and his successors for the time being of the said Thakardwara shall hold the said Jaghir as Trustee for the said ::: Downloaded on - 01/09/2017 23:26:27 :::HCHP ...11...
Thakardwara and shall be bound to apply the annual proceeds to its due maintenance, and for its advantage. Provided also that this grant is conditional upon the good behavior of the headmen, other servants and occupants for .
the time being of the said Thakardwara and is at any time resumable at the pleasure of the British Government and is not transferable.
Schedule of Land a-.R.P. 12-0-18 of land assessed to = 14.0.0 in mauza Ambota of the Una Tehsil No. 5 of Hoshiarpur.
Sd/- Illegible.
Commipioner & Superintendent, Jullundur Division"
9. It would be evidently clear from the aforesaid deed that the same was made between the Secretary of State in Council on the one hand and Nanku son of Jassu on behalf of the Thakurdwara on the other hand. Therefore, the allegations of the petitioners that the grant was made in favour of their predecessor-in-interest by the Secretary of State in Council is absolutely false as Nanku had executed the deed only on behalf of the Thakurdwara in whose favour otherwise the grant was made. It was clearly provided in this deed that Nanku would only hold the Jagir as a trustee for the Thakurdwar and thereafter it was to devolve on the future headmen for the time being of the said Thakurdwara and not by succession as claimed by the petitioners. Provided always that the said Nanku and his ::: Downloaded on - 01/09/2017 23:26:27 :::HCHP ...12...
successors of the said Thakurdwara would hold the said Jagir as trustee of the Thakurdwara and bound to apply the annual proceeds to its due maintenance and for its advantage. The .
grant was further conditional upon good behavior of the headmen, other servants and occupants of the Thakurdwara and was at any time resumable at the pleasure of the British Government and was not transferable.
10. Thus, it can safely be concluded that no grant, in fact, was made in favour of Nanku but the same was made in favour of the Thakurdwara and Nanku was only trustee thereof.
11. Once that be so, then the petitioners have no locus standi much less a right to object to the inclusion of the same in Schedule-I as the provisions of the Act are duly applicable to the Thakurdwara. In the given circumstances, the petitioners cannot even claim either a right of hearing or heard to complain that no reasons have been recorded before taking over the temple, particularly, in view of the judgment rendered by this Court in Jiwanand Sharma vs. State of H.P., 2013 SCC Online HP 2584 wherein it was observed as under:-
"6. That, however, is not the purpose of issuing impugned notification under Section 29 of the Act of 1984. The effect of notification issued under Section 29 is only to apply the provisions of the Act of 1984 to the Trust, so notified by virtue of Section 1(3) of the Act. It was open to the State Legislature to ::: Downloaded on - 01/09/2017 23:26:27 :::HCHP ...13...
include the Trust, in question, in Schedule I, when the Act was passed in 1984 itself. However, that is being done by way of notification in exercise of power entrusted to the State Government under Section 29 of the Act; and the same has .
received approval of the Legislative Assembly after placing of the said notification before the Legislative Assembly, as per Section 29 (2) of the Act. The counsel for the petitioners is not in a position to rely on any express provision in the Act of 1984, which mandates giving of prior notice or affording hearing to the Managers or Office Bearers of the Trust, in question, before including the Trust in Schedule I, so as to make the provision of the Act of 1984 applicable to such Trust. In the circumstances, the fact that the prior notice has not been given to the then Office Bearers of the Trust does not render the notification invalid. It is not a notification for appointment of Administrator or to supersede the Managing Committee of the Trust as such, which action can be resorted to in exercise of powers under provisions falling under Chapter V of the Act of 1984. If that action is resorted to, there is no manner of doubt that the principles of natural justice will have to be complied with and moreso, the procedure prescribed in Chapter V of the Act.
7. The next submission canvassed before us is that there was no material before the State Government to issue notification in question. The notification, in our opinion, on the face of it, mentions that it has been issued in public interest. There is nothing in the provisions of the Act of 1984 obliging the State Government to record reasons or factors which weighed with the State Government, to issue such notification in public interest. Since the petitioners have raised that issue, the respondents have filed detailed affidavit placing on record the background on which the State Government was required to take the decision of inclusion of the Trust, in question, in Schedule I of the Act of 1984. It is not possible for ::: Downloaded on - 01/09/2017 23:26:27 :::HCHP ...14...
this Court to do judicial review of the subjective satisfaction of the State Government on the factum of public interest. Entering into that thicket would require the Court to venture into whether the material before the State Government .
before issuing the notification was adequate and sufficient.
That cannot be the scope of judicial review."
12. Therefore, we find no merit in this petition and the same is accordingly dismissed, so also the pending applications, if any. Interim order, if any, stands vacated.
(Tarlok Singh Chauhan),
Judge
r (Chander Bhusan Barowalia)
Judge
Dated: 31.08.2017
(Sanjeev)
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